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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Americom Las Vegas Limited Partnership ) File No. EB-02-DV-
094
)
Licensee of FM Radio Station KWNZ ) NAL/Acct. No.
200332800006
Carson City, Nevada ) FRN 0003-7662-92
Facility ID # 53706 )
FORFEITURE ORDER
Adopted: May 26, 2004 Released: May 28, 2004
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand dollars
($10,000) to Americom Las Vegas Limited Partnership
(``Americom''), licensee of FM radio station KWNZ, Carson City,
Nevada, for willful and repeated violation of Section 1.1310 of
the Commission's Rules (``Rules'').1 The noted violations involve
Americom's failing to comply with radio frequency radiation
(``RFR'') maximum permissible exposure (``MPE'') limits
applicable to transmitters on towers.
2. On November 22, 2002, we issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to Americom for a forfeiture
in the amount of ten thousand dollars ($10,000).2 Americom filed
its response to the NAL on December 23, 2002.
II. Background
3. KWNZ's transmission facilities are located on McClellan
Peak, near Carson City, Nevada. On November 6, 2001, agents from
the FCC's San Francisco, California, Field Office (``San
Francisco Office'') conducted a site inspection at the McClellan
Peak antenna site. The McClellan Peak site is on unfenced,
publicly accessible property managed by the Bureau of Land
Management (``BLM''), located at the junction of three counties,
Storey, Washoe, and Lyon Counties, approximately 4 kilometers
northeast of Carson City. There are 13 broadcast stations which
transmit from the McClellan Peak site. During the November 6,
2001 inspection, the personal RFR monitors worn by the agents
began to alarm while in the vicinity of the KWNZ transmitter
site. The personal RFR monitors are designed by the manufacturer
to begin alarming when RFR exposure levels reach 50 percent of
the Commission's occupational exposure limit. The occupational
exposure limit is five times greater than the public exposure
limit. Thus, the alarming appeared to indicate that there were
RFR levels in excess of the MPE limit for the general public in
the vicinity of the KWNZ transmitter.
4. On May 1, 2002, the FCC's Denver, Colorado Field
Office (``Denver Office'') issued a Letter of Inquiry (``LOI'')
to Americom and 12 other broadcast licensees which transmit from
the McClellan Peak site regarding RFR compliance at the site and
advising that a site inspection would take place on May 15, 2002.
5. On May 14, 2002, FCC agents from the Denver and San
Francisco Offices conducted preliminary measurements in publicly
accessible areas throughout the McClellan Peak site. The
preliminary measurements indicated that the RFR levels in those
areas exceeded the MPE limit for the general public. On May 15,
2002, the agents returned to the McClellan Peak site and
conducted additional measurements. The site was easily
accessible to 4-wheel drive vehicles from a public gravel and
dirt roadway off Goni Road. Two commercial gravel pits were
located along the gravel roadway to the site. An ungated
internal dirt road led from the gravel roadway to the site, with
multiple branches to reach the various antenna structures. The
agents observed that there were trails for off-road 4-wheel drive
vehicles and all terrain vehicles (``ATVs'') along the gravel
roadway and at the site itself. The agents also observed members
of the public driving ATVs, ATV tire tracks, a campfire ring,
beer and wine bottles, and other trash indicative of public use
of the BLM site.
6. The measurements taken by the agents on May 15, 2002,
indicated that there were RFR fields in publicly accessible areas
at ground level that exceeded the FCC's MPE limits for the
general public. The agents found spatially averaged RFR fields
measuring 0.284 mW/cm2, which exceeds the MPE limits for the
general public by 42%, in unfenced areas between the KWNZ
transmitter building and the KWNZ antenna tower.3 On May 15,
2002, at the request of the agents, KWNZ temporarily powered down
to enable the agents to determine if there were other significant
RFR contributors in the primary 10 square foot area identified as
exceeding the limits. While KWNZ was powered down, the RFR
fields in this primary area measured only 0.0115 mw/cm2 or 5.75%
of the RFR MPE limits for the general public. The agents also
requested two other broadcasters in the immediate vicinity to
power down in turn. While each of the other broadcasters was
powered down, the measured RFR fields in the primary area did not
change. The agents determined, based on these measurements, that
KWNZ was contributing over 94% of the measured RFR field and that
KWNZ's operation alone exceeded the MPE limits for the general
public by 36% in unfenced areas between the KWNZ transmitter
building and the KWNZ antenna tower.
7. Americom submitted its response to the LOI on June 7,
2002. As part of the response, Americom submitted a report of
RFR measurements conducted at the McClellan Peak site on May 15,
2002, by an Americom consultant. This report shows that RFR
fields in an unfenced area adjacent to the KWNZ tower exceeded
the MPE limits for the general public by 18%. Americom stated
that out of an abundance of caution, it has contracted for this
location to be fenced as if it were in an uncontrolled
environment.
8. On November 22, 2002, we issued the subject NAL to
Americom for a forfeiture in the amount of ten thousand dollars
($10,000). In its response to the NAL, filed December 23, 2002,
Americom seeks cancellation of the proposed monetary forfeiture.
Americom argues that there is ``only circumstantial evidence'' of
recent public use of the area near the KWNZ transmitter site;
that there is ``no evidence whatsoever of public use of the
particularized ten square foot area'' where Americom exceeded the
RFR MPE limits; that Americom has in ``good faith'' treated the
KWNZ transmitter site as a ``controlled environment'' and
implemented a ``common sense'' approach to RFR compliance which
is consistent with OET Bulletin 654; and that, if it did violate
Section 1.1310 of the Rules, the appropriate sanction is
admonishment.
III. Discussion
9. The forfeiture amount in this case is being assessed in
accordance with Section 503(b) of the Communications Act of 1934,
as amended (``Act''),5 Section 1.80 of the Rules,6 and The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12
FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999)
(``Policy Statement''). Section 503(b) of the Act requires that,
in examining Americom's response, the Commission take into
account the nature, circumstances, extent and gravity of the
violation and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and
other such matters as justice may require.7
10. Section 1.1310 of the Rules requires that licensees
comply with RFR exposure limits. Table 1 in Section 1.1310 of the
FCC's rules provides that the public RFR MPE limit for a radio
station operating on channel 247 (97.3 MHz) is 0.200 mW/cm2.
Based on the investigation of the FCC agents, we find that the
operation of KWNZ created RFR fields that exceeded the RFR
exposure limits for the public in an unfenced, publicly
accessible area on both May 14 and 15, 2002.
11. Americom contends that the less restrictive
occupational RFR exposure limits apply to the KWNZ transmitter
site because there is ``only circumstantial evidence'' of recent
public use of the area near the KWNZ transmitter site. In
particular, Americom asserts that ``the remote nature'' of the
KWNZ transmitter site makes it an unlikely destination for the
general public; that the NAL ``fails to establish the exact
location and extent of the trash, [campfire ring] and ATV tire
tracks''; that its former Chief Engineer (1984-1998) has never
seen fire rings or trash on McClellan Peak Ridge; that its
current Chief Engineer (1998-present) recently looked for fire
rings and trash on McClellan Peak Ridge but could find no fire
rings and ``only sparse and old'' trash that was ``no where
near'' the KWNZ transmitter site; and that the trash and tire
tracks observed by FCC agents may have been left by workers who
service the transmission facilities on McClellan Peak Ridge.
There is, in fact, ample evidence of recent public use of the
area near the KWNZ transmitter site. FCC agents observed: trash
in at least four locations throughout the approximately ¼ mile
long area on McClellan Peak Ridge where the transmission towers
are located; ATV tracks throughout that area; and a campfire ring
in the same area. The trash observed by the FCC agents included
beer and wine bottles -- not the kind of trash likely to be left
by workers who service transmission facilities. The tire tracks
observed by the FCC agents were ATV tracks; these tracks were not
made by the kind of vehicles that would be used to service the
transmission sites on McClellan Peak Ridge. Finally, the agents
also observed ATV use by at least two drivers during the
inspection of KWNZ. We conclude that the public exposure limits
applied to the area in which Americom exceeded those limits.
12. Americom also contends that there is ``no evidence
whatsoever of public use of the particularized ten square foot
area'' where Americom exceeded the RFR MPE limits. To show that
the public exposure limits apply, it is not necessary to
establish actual public use of that area. The public use of the
area near the KWNZ transmitter site is sufficient to establish
the applicability of the public exposure limits.
13. In addition, Americom asserts that it has in ``good
faith'' treated the KWNZ transmitter site as a ``controlled
environment'' and implemented a ``common sense'' approach to RFR
compliance consistent with OET Bulletin 65. In view of the
public use of the area near the KWNZ transmitter site, the KWNZ
transmitter site was accessible to the general public and,
therefore, not a ``controlled environment.'' Furthermore, even
in those situations where the remoteness of a transmitter site
allows the licensee to dispense with fencing, OET Bulletin 65
indicates that warning signs at the area of concern may obviate
the need for fencing8; there were, however, no warning signs
which applied to the area where Americom exceeded the RFR MPE
limits. Americom argues that signs 10 - 15 feet from the area
affected by excessive RFR were sufficient to warn the public.
When the agents took the RFR measurements, they looked for
warning signs; the only warning signs they observed were at the
front of the building at KWNZ's transmitter site, where they
would not be seen by persons approaching the area affected by
excessive RFR from a different direction. We find, therefore,
that Americom did not have signs sufficient to warn the public.
14. Based on the evidence before us, we find that Americom
willfully9 and repeatedly10 violated Section 1.1310 of the Rules
by exceeding the RFR MPE limits for the general public and
failing to adequately take measures to prevent the public from
accessing areas that exceeded the RFR exposure limits.
15. Americom contends that, if it did violate Section
1.1310 of the Rules, the violation is minor and the appropriate
sanction is admonishment. Specifically, Americom argues that its
violation is ``more technical in nature than a general public
safety threat'' and that, compared to the RFR violation in A-O
Broadcasting Corporation,11 its violation is ``comparatively
insignificant.'' We do not agree. Any significant violation of
those limits is a hazard to human health. Americom contributed
over 94% of the RFR field which exceeded the MPE limit by 42%
and, by itself, exceeded the RFR MPE limit by 36% -- significant
amounts. We find that a monetary forfeiture - not an
admonishment -- is the appropriate sanction for this violation.
The Commission determined in A-O Broadcasting Corporation that
$10,000 is an appropriate base forfeiture amount for violation of
the RFR MPE limits. An RFR violation need not be as significant
as A-O Broadcasting Corporation's violation12 to warrant
imposition of the full $10,000 base forfeiture amount. 13 We
conclude Americom's violation of the RFR MPE limits warrants
imposition of the full base forfeiture amount.
16. We have examined Americom's response to the NAL
pursuant to the statutory factors above, and in conjunction with
the Policy Statement as well. As a result of our review, we
conclude that Americom willfully and repeatedly violated Section
1.1310 of the Rules and that the appropriate forfeiture amount is
$10,000.
IV. Ordering Clauses
17. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,14 Americom IS LIABLE FOR A MONETARY FORFEITURE in the
amount of ten thousand dollars ($10,000) for failing to comply
with radio frequency radiation maximum permissible exposure
limits applicable to transmitters on towers, in willful and
repeated violation of Section 1.1310 of the Rules.
18. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.15
Payment may be made by mailing a check or similar instrument,
payable to the order of the Federal Communications Commission, to
the Federal Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. The payment should reference NAL/Acct. No.
200332800006 and FRN 0003-7662-92. Requests for full payment
under an installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C. 20554.
19. IT IS FURTHER ORDERED THAT a copy of this Order shall
be sent by first class mail and certified mail, return receipt
requested, to Americom's counsel Dennis P. Corbett, Esq., and
Phillip A. Bonomo, Esq., Leventhal Senter & Lerman PLLC, 2000 K
Street, N.W., Suite 600, Washington, D.C. 20006-1806.
FEDERAL COMMUNICATIONS
COMMISSION
David Solomon
Chief, Enforcement Bureau
- Unhandled Picture -
_________________________
1 47 C.F.R. § 1.1310.
2 Americom Las Vegas Limited Partnership, 17 FCC Rcd 26689
(Enf. Bur. 2002).
3 The agents averaged two sets of measurements, one that
measured 126% of the MPE limit and one set that measured 159% of
the MPE.
4 OET Bulletin 65, ``Evaluating Compliance with FCC
Guidelines for Human Exposure to Radiofrequency Electromagnetic
Fields'' (August 1997).
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 OET Bulletin 65 contains the following guidelines:
There may be situations where RF levels may exceed the MPE
limits for the general public in remote areas, such as
mountain tops, that could conceivably be accessible but are
not likely to be visited by the public. In such cases,
common sense should dictate how compliance is to be
achieved. If the area is properly marked by appropriate
warning signs, fencing or the erection of other permanent
barriers may not be necessary.
9 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1),
which applies to violations for which forfeitures are assessed
under Section 503(b) of the Act, provides that ``[t]he term
`willful,' ... means the conscious and deliberate commission or
omission of such act, irrespective of any intent to violate any
provision of this Act or any rule or regulation of the Commission
authorized by this Act ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
10 As provided by 47 U.S.C. § 312(f)(2), a continuous
violation is ``repeated'' if it continues for more than one day.
The Conference Report for Section 312(f)(2) indicates that
Congress intended to apply this definition to Section 503 of the
Act as well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991).
11 17 FCC Rcd 24184 (2002); Forfeiture Order 18 FCC Rcd 27069
(2003).
12 In A-O Broadcasting Corporation, supra, United States
Forest Service personnel, who were unaware of the risk, had
unrestricted access to an area in an observation tower that
exceeded the RFR MPE limits by over 1000%.
13 See, e.g., AMFM Radio Licenses, L.L.C., e t al, 18 FCC Rcd
22769 (2003).
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).